As tribal government gaming expands across the states that permit it, clashes are becoming more common between existing tribal casinos and the newcomers.
Washington’s Kalispel Tribe, owner of the Northern Quest Resort and Casino has gone to federal court seeking an injunction to halt construction of the rival West Plains Casino that the Spokane Tribe is building in Airway Heights, 3.5 miles from the Northern Quest.
The Kalispel Tribe claims the first phase of the new $400 million casino will cause it “significant harm.” The suit, filed in U.S. District Court, claims the Bureau of Indian Affairs didn’t take that harm into account when it put the land into trust.
The Kalispel’s spokesman said that since the harmful effect of the casino was ignored, “legal action is the only avenue available to us to protect a sustainable economic future for our people.”
The casino anticipates an opening later this year, with amenities that will include dining and an outdoor plaza. Construction of the resort has been ongoing since the fall.
The casino is the Spokane Tribe’s second casino is being built on 147 acres that the tribe regards as part of its aboriginal territory and where it fought the U.S. Army in 1858. A spokesman stated last year: “Our studies show there is definitely room for two casinos. We believe in healthy competition.”
The lawsuit centers around the fact that the BIA used the two-part determination process required by the Indian Gaming Regulatory Act (IGRA) for putting land off the reservation into trust. One requirement of the two-part determination is that it must be shown that it won’t be detrimental to the surrounding community.
The Kalispel spokesman said, “We support the Spokane Tribe’s goal to develop more economic opportunity, but not at the cost of the Kalispel Tribe of Indians and our future generations.” The tribe claims that it will lose as much as 44 percent or $90 millions of its revenue and claims that the Obama administration ignored this impact.
It calls the administration’s action, “arbitrary” “capricious” and an “abuse of discretion.”
This lawsuit will be a test for the new Trump administration, which has already taken some steps that are perceived as being opposed to off-reservation casinos. The Spokane Tribe last year became the sixth tribe in the U.S. approved for an off-reservation casino. It capped a ten-year process. It was agreed to by Washington Governor Jay Inslee, as required by the two-part determination.
The Trump administration has not yet responded to the lawsuit. But it has given some hints as to how it regards off-reservation casino applications. Interior Secretary Ryan Zinke ordered that all such applications be approved by his office, rather than letting them be decided by the BIA. Currently there is no Assistant Secretary for Indian Affairs, the official who heads the BIA.
The Spokane Tribe is behaving as though they expect the Department of Justice to defend their claims. Chairwoman Carole Evans said in a statement last week: “We stand ready to assist the Department of Justice in defending against the Kalispel Tribe’s lawsuit, which boils down to an argument that the government is somehow required to insulate Kalispel’s gaming monopoly against fair competition from us, the resident tribe, despite our significant unmet needs.”
The Obama administration put about 500,000 acres into trust during its two terms, and approved four off-reservation casinos. That contrasts with the Bush administration, when no such off-reservation casinos were approved.
Ironically, although the Spokane tribe is the second in Washington to have off-reservation land put into trust, the Kalispel tribe was the first—for the Northern Quest.
In Wisconsin, the Stockbridge-Munsee Community recently filed a lawsuit in federal court against the Ho-Chunk Nation, the state and Governor Scott Walker. The suit asks a judge to block the Ho-Chunk Nation from adding slot machines at its casino in Wittenberg. The Stockbridge-Munsee operate a nearby casino in Bowler. ” Stockbridge President Shannon Holsey said, “We don’t relish having to take this step, but do so to protect our sovereign right to self-determination.”
The dispute began eight months ago when the Ho-Chunk commenced a $33 million expansion at its Wittenberg facility, with 250 more slots. The venue opened in 2008 as an “ancillary facility” permitted under the 2003 tribe’s gaming compact.
In the lawsuit, the Stockbridge claim even though the Ho-Chunk has been operating a casino at the site since 2008, it’s not permitted to do so under federal law. Furthermore, the lawsuit said, even if a casino is allowed there, it’s supposed to be a secondary facility and not as large as the expansion calls for. The suit seeks an order stating the Ho-Chunk plans violate federal law and its state gaming compact. Also, the Stockbridge asked a judge to prevent the Ho-Chunk from adding to its 502 slots before the lawsuit is adjudicated. That process could take several years.
Stockbridge officials said if the expanded Ho-Chunk facility opens, the Stockbridge will lose $22 million in annual casino revenue, which helps fund public works projects, medical care and other services for the tribe’s 1,470 members.
The Stockbridge has signaled its plans for weeks and last month announced it would withhold a nearly $1 million payment to the state because it believed Wisconsin regulators were not holding the Ho-Chunk to the terms of its casino agreement with the state.
The state has sided with the Ho-Chunk, and as a result the Stockbridge said it will withhold its $923,000 payment—a share of annual casino revenue–due in June.
Steven Michels, a spokesman for the state Division of Gaming, said, “The state of Wisconsin has been consistent and clear in honoring the compacts with all of the tribes in Wisconsin. Under the terms of the Ho-Chunk compact, as amended in 2003 by the Doyle administration, the Ho-Chunk are authorized to conduct gaming in Wittenberg.”
An issue raised by the lawsuit is how long the Ho-Chunk has possessed the land where its casino is located, since properties that tribes acquired before October 1988 are allowed to be used for gambling The Ho-Chunk claim a church gave it the property in 1969 and it has owned it ever since. However, the Stockbridge contend the church required that housing be built on it within five years, which the Ho-Chunk did not do and subsequently lost the land in 1974. The Stockbridge said the Ho-Chunk got the land back in 1993.
