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Class II regulation changes cause conflict

MINNEAPOLIS, Minn. - New regulations governing Class II gaming are opposed
by the many tribes that have that level of gaming, and a lawsuit to stop
the process has been filed in federal court.

The new regulations, the National Indian Gaming Commission argues, are
supposed to change Class II gaming definitions to match the changes in the
technology. Class II is the bingo gaming class, but gaming devices that
approach look-alike and feel-alike slot machine status prompted the new
regulations.

At the heart of the lawsuit is the process by which NIGC decides the
changes in Class II gaming, not the changes themselves.

The plaintiffs in the case are the Confederated Salish-Kootenai Tribes and
the Santa Rosa Rancheria of California. Santa Rosa now has Class III gaming
with some Class II devices, but entered into the lawsuit because of the
precarious nature of the gaming industry in that state, said Butch Denny,
tribal administrator.

Dan Decker, attorney with the Montana law firm Decker & Desjarlais, said
his clients asked for an injunction because the NIGC is not adhering to
federal guidelines of advisory groups under the Federal Advisory Committee
Act.

The NIGC argued that its approach is consultative and
government-to-government, and therefore does not require any public
information nor is it required to keep a record of the meetings, which
would be required under FACA.

A key point in the lawsuit is the fact that the NIGC formed the Tribal
Advisory Committee to help rewrite the Class II regulations. The committee
does not consist of elected tribal officials, as would be required for
government-to-government negotiations; and three of the members are not
tribal members, according to the complaint. The NIGC asked that technical
people be appointed to the committee.

Elected tribal officials have tried to enter the meetings but were denied a
right to comment, said Jami Hamel, Salish-Kootenai tribal council vice
chairman.

Hamel said if the meetings were government-to-government as the NIGC
stated, as a council member she would have the right to the information and
also to be a member of the committee and offer input.

The plaintiffs claim that the NIGC is inconsistent in its definition of the
committee. Some NIGC members, they said, claim it is advisory; others say
government-to-government.

The federal government wants to include some Class II devices within the
Class III definition. When a tribe wants to expand its number of gaming
devices, as the market dictates, it can add Class II devices without any
negotiation with the state or NIGC. That has prompted litigation in the
state of California, and a settlement in that case is dependent upon what
the new Class II regulations will state, Decker said.

The change in Class II would also deny the tribes negotiating leverage when
they want to compact for Class III gaming, Denny and Hamel said.

For the Department of Justice, Class II devices are an issue because they
want those devices to become a Johnson Act device, Decker said. The DOJ has
not won any case involving Class II gaming.

For the states it is a question of revenue, he said. Class II gaming will
not allow them to negotiate; it is solely up to the sovereign tribe. Decker
said Sen. John McCain has received many complaints from governors.

"They want it to be a Johnson Act device too, but for a different reason,
because they want revenue, so you have those forces," Decker said. "It's
not that this gambling is not regulated: it's that the states are not
getting money.

"If Justice was so sure that these are Johnson Act devices, why aren't they
trying to enforce it," he said.

The Johnson Act defines gaming devices, but the industry claims that Class
II gaming, which is bingo related, does not include devices that fall under
the Johnson Act definition.

What the NIGC attempts to change is that definition and the bingo
definition that requires two to six players to play against each other: a
figure Decker called arbitrary.

Conception plays a part in this scenario. The media, in reporting gaming
information without including all the pertinent information, creates
misunderstandings, Hamel and Decker said.

"McCain and others [are] not fully understanding, but being influenced by
the media with these stories about Indian gaming that blurs the line
between Class II and Class III gaming. We are pretty clear about Class II
and Class III," Hamel said.

NIGC chairman Phil Hogen attended the Great Plains Indian Gaming conference
and listened to some of the criticism leveled against the NIGC. He had no
comment. He did, however, say that there is a crisis going on in Congress,
and that Congress will tighten up Indian gaming if the tribes don't do
something.

"So I'm not sure what it is, but I do know Department of Justice
politically for whatever reason, since the passage, has not liked technical
aids in Class II. Whether it's political or philosophical, it's part of
that institutionalized part of the Department of Justice that they are just
opposed to devices of Class II games.

"It doesn't matter whether the games meet the technical standards the
courts have lined out - they just don't like it," Decker said.