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Metlakatla withdraws Class II gaming application, ending precedent threat

WASHINGTON – The Metlakatla Indian Community Council has withdrawn its appeal of a National Indian Gaming Commission decision to disallow so-called “one-touch” electronic bingo.

One-touch bingo machines are widespread in Indian country. The Alaska Native village of Metlakatla had hoped to install a relative few.

The withdrawal means that NIGC can take no final agency action on the matter, “mooting out” any potential precedent it might have set, said John Tahsuda, an attorney and lobbyist with Navigators LLC in Washington. He represents the Oklahoma Indian Gaming Association, whose chairman, David Qualls, added: “We’re grateful that Indian country has dodged a stray bullet. ... While respecting their sovereignty, we approached Metlakatla about the wider impact this could have. I’m very grateful to the Metlakatla for reconsidering and withdrawing their petition.”

Commission Chairman Phil Hogen interpreted the one-touch game described in a Metlakatla petition from May as an electronic facsimile of a game of chance. His definition classified it as a Class III game, which the Indian Gaming Regulatory Act outlaws in the absence of a compact with a state. IGRA permits Class II games, primarily bingo, in states where tribes and the governor have not negotiated a compact.

Class II tribes contend that technological advances have given one-touch bingo machines an entertainment value that increases their profitability, but without evolving them into the games of chance identified by Hogen.

All Class II tribal gaming ordinances, including amendments, must be approved by the commission.

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Hogen, who has said he welcomes a court test that would draw a “bright line” between Class II and Class III gaming under IGRA, regretted the Aug. 19 withdrawal of Metlakatla’s appeal to the full commission – likely only a prelude to federal court.

“It appears a judicial test of this important dividing line will be put off at this time,” Hogen stated in an Aug. 20 NIGC release. “I continue to feel that the Indian gaming industry will be better served if needed clarity can be brought to this matter. If there was concern that the view stated in my disapproval of this measure would be sustained in federal court review, I think such concern was well-placed.”

But in Class II venues, the more immediate concerns were profits and jobs. Several studies, including one from NIGC, estimate revenue losses to tribes ranging from $1.8 billion to $2.8 billion under Hogen’s “bright line” distinction, along with 7,500 fewer jobs. In a vehement Aug. 5 letter to Hogen, Rep. Tom Cole, R-Okla., noted that more than half the losses would be concentrated among Oklahoma tribes.

Following Hogen’s decision on the Metlakatla petition, the Chickasaw Nation of Oklahoma obtained NIGC e-mails under the Freedom of Information Act. Qualls and Tahsuda emphasized a reference to the “Joe Webster test case,” which they interpreted to suggest that Hogen steered the Metlakatla petition toward the courts on terms favorable to the commission. At the same time he made the Metlakatla decision, Hogen “set aside” classification standards for Class II and Class III games that had proved controversial among tribes.

The unsparing language of Cole’s letter accuses Hogen of duplicity and “back door regulatory actions,” in violation of the cooperation and consultation Congress expects toward tribes. Hogen denies the charges.

“From the documents I saw,” Qualls said, “there was some conversation between NIGC staff attorneys, the chairman and his general counsel ... on the ‘Joe Webster test case.’ ... Obviously there was some pre-meditation.”

Webster, an attorney representing Metlakatla for the Washington firm of Hobbs, Straus, Dean & Walker, could not be reached for comment.