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Fort Sill Apache protest out-of-state gaming

LAWTON, Okla. – A tribe seeking an out-of-state gaming site in New Mexico is protesting the state of New Mexico’s intervention in its National Indian Gaming Commission appeal. The Fort Sill Apache filed a protest Oct. 20 with the federal gaming agency citing that any input from a state entity on a tribal-federal gaming issue hints at a slanted outcome, tribal officials said.

The 650-member tribe is challenging the NIGC’s earlier assertion that the tribe cannot conduct Class II gaming in Akela Flats, N.M. The NIGC levied a notice of violation on the tribe in July, saying the tribe’s gaming operation at the site did not fall within the parameters of federal statutes. The tribe recently agreed to halt its paper bingo operation pending a decision by the NIGC on the site’s status or face $25,000/day in fines.

The tribe opened the 30-acre Akela Flats site in March 2008 but soon met opposition with state officials. The land was taken into trust in 2001, tribal officials said.

New Mexico attorneys asked on behalf of Gov. Bill Richardson in August to intervene “fully” in the appeals process. Attorneys for the state asked that it be allowed to participate because the interest of state citizens and New Mexico gaming tribes was at stake and should be protected, the state’s filing said.

Paul Bardacke, an attorney hired by the state of New Mexico, asserted that if allowed, the state’s participation in this appeal will “create a more complete record for the Commission’s decision,” according to the filed motion to intervene.

Bardacke said the matter was tantamount and would not prejudice any party or cause delay. Furthermore, allowing the Fort Sill Apache Homelands Entertainment Center to operate constituted illegal gaming within state boundaries since Fort Sill had no gaming compact with the state.

Bardacke said gaming was allowable only for tribes that had negotiated state compacts (Class III) and as such, gaming is a prized and capable economic engine for the sovereign governments within that state. The exclusivity should be protected, state attorneys said.

Presently, state compacts have been negotiated with the New Mexico government and tribes until 2037.

“Both the state of New Mexico and the sovereign gaming tribes within the state have a vested interest in legal gaming and the prevention of illegal gaming, within the limits of New Mexico,” Bardacke said in the motion.

Bardacke could not be reached for comment by press time.

Meanwhile, tribal representatives are concerned the intervention of the state of New Mexico compromises the integrity of the NIGC’s appeal process and sets an unfavorable precedent for state intervention on federal-tribal gaming matters.

Phil Thompson, attorney for the Fort Sill, said New Mexico’s insistence on involvement in the appeal indicates that the federal gaming agency defers to states instead of tribal governments. “It tells us this decision (NIGC) is not going to be partial, or at least it appears that way.”

In response, tribal attorneys said New Mexico does not meet established criteria to participate as a party. Some of those include adverse affects on those the party represented and whether the existing parties are not adequately represented.

Additionally, the state already allows Class II or bingo-based games within the state and is the type of gaming the Fort Sill Apache operated at Akela Flats. Their paper bingo was consistent with existing state statutes and the Indian Gaming Regulatory Act of 1988, tribal attorneys said.

“Nothing elsewhere in the IGRA authorizes the state to regulate Class II on Indian lands,” the brief said. “Therefore, the state has no real authority to enforce any aspect of IGRA with regard to this case.”

At end, the tribal protest suggested that the state of New Mexico enter into official compact negotiations with the Fort Sill Apache if interests and rights need clarification. Negotiating a state compact with Fort Sill Apache for the Akela site would also change an already economically depressed area in New Mexico.

According to the filing, the NIGC is expected to make a decision based on the briefs filed by both the NIGC and the Fort Sill Apache. NIGC officials said they have an established government-to-government consultation process.

“States are not a part of the NIGC enforcement process, but have offered input on a couple of occasions,” said Shawn Pensoneau, NIGC director of congressional and public affairs.

The Fort Sill Apache headquarter in Apache, Okla. and claim legal descendency of the Warm Springs/Chircahua Apache that were imprisoned in Oklahoma in the late 1800s. The tribe currently operates one casino in Lawton within its present-day jurisdiction.