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California gaming regulation talks begin

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SACRAMENTO, Calif. - After years of confusion and acrimony, several gaming regulators from all levels of government and other interested parties gathered at a Sacramento hotel on Nov. 13 attempting to smooth out the rough edges.

The roster of speakers included people involved on many levels of government and sought to open a dialogue between tribes and their government regulators.

Judging from the difference of opinions, it looks as though there is still much work to be done. However, the general tone of the conference was fairly amicable and no great moments of controversy erupted.

"We're basically sending messages back and forth," said tribal gaming consultant Michael Lombardi who moderated the event.

One of those messages was a seeming olive branch extended by Michael Palmer of the California Gambling Control Commission, a body appointed by the governor to regulate Indian gaming.

"We need to work collaboratively and the past two years have not been a reflection of that," said Palmer. "The state has been too rigid (in dealing with tribes)."

Over the past few years, the Commission has engaged in several confrontations with tribes over several issues, including the handling and distribution of funds set up by gaming tribes to be distributed to everything from local governments to non-gaming tribes.

The tribes often blamed former Commission chairman John Hensley, who stepped down last spring for instigating the tension and though Palmer never mentioned Hensley by name, his reference to the tensions of the past two years were at least an indirect reference to Hensley's controversial tenure.

Palmer also cautioned, however, that the Commission could not be too soft either and hinted that some compromises must be made.

Since tribal gaming is regulated at three levels of government, federal, state and tribal, Palmer maintained that some areas of regulation were being duplicated and in his opinion, a more streamlined process that eliminates the overlap is needed.

One area where California tribes have been critical of the state is in the seeming overlap of the Commission and the California Attorney General's Division of Gambling Control. In sharp contrast to Hensley, the former head of the Division, Harlan Goodson, who also stepped aside this year was largely viewed as friendly to tribal interests.

Now after three years of ironing out the differences, Goodson's successor Robert Lytle announced a "bifurcated system" of regulation between the two governmental entities, in which the Commission is responsible for regulatory action and the Division is responsible for law enforcement. Lytle said that the issuance of gaming licenses will be a shared responsibility between the Commission and the Division.

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The relationship between the two bodies was nearly as contentious as was the relationship between the tribes and the Commission.

"Our relationship with the Commission has improved in the last year," said Lytle.

Lytle announced the availability of the Division to investigate crimes at tribal casinos and maintained that his office is working on streamlining the law enforcement process at tribal casinos. Largely because of law enforcement jurisdictional issues, tribes have complained that they are often denied requests for assistance from local law enforcement entities when employees commit crimes at tribal gaming establishments.

Palmer and National Indian Gaming Commission chairman Phil Hogen, who also addressed the conference acknowledged that the regulatory needs of, for example, large casinos and small bingo operations, both subject to the 1988 Indian Gaming Regulatory Act (IGRA), can be quite different.

Though there was definitely a consensus that different size gaming operations have differing needs, there was no consensus, as of yet in how to do that.

Elizabeth Elgin DeRouen, chairwoman of the Dry Creek Rancheria feels that it has to be done individually.

"I don't agree with a cookie cutter approach," DeRouen said.

Frank Ducheneaux, former legal counsel to the United States House of Representatives who helped draft IGRA in the 1980s thinks that tribes should have the right to establish their own regulation according to their needs.

Ducheneaux fears that the states are undermining IGRA and that the original law makes no provision for revenue sharing with the state and fears that such agreements are tantamount to relinquishing tribal sovereignty.

"IGRA strictly prohibits the states from requiring any fee, tax or charge," said Ducheneaux. "It's a violation of federal law."

California Indian Nations Gaming Association Executive Director Jacob Coin agrees with Ducheneaux and says a big part of the problem concerns unclear regulatory points.

"If there's an ambiguity, the state will over step its bounds," Coin said.

Coin said the point of the conference, which was coordinated by CNIGA, was to open dialogue between the different levels of regulators. He feels that this is the first step in what he describes as a "long process" to get the issues out on the table and promote greater understanding.