SANTEE, Neb. - With a decision that may have changed the way tribes will look at Class II gaming in the future, the Santee Sioux Tribe can legally operate its casino
The 8th Circuit Court of Appeals upheld a District Court Decision that said the Lucky Tab II is indeed a Class II gaming device. This decision may change the way people interpret the Johnson Act.
The government argued that certain Class II gaming devices were not legal under the Indian Gaming Regulatory Act if the Johnson Act prohibits that device. The Tribe's Ohiya Casino operates a pull-tab machine called the Lucky Tab II, which replaced the Class III gaming devices. The National Indian Gaming Commission ruled that the Lucky Tab II is a Class II gaming device.
"The Johnson Act does not bar this type of machine, because it is merely a high-tech dispenser of pull-tabs," the court stated in the written opinion. The court also found that IGRA does not repeal the Johnson Act. The Johnson Act defines types of gaming devices as slot machines that have a drum or reel with insignia and has an exchange of money or property between the machine and operator. The Lucky Tab II machines do not deliver any money.
The courts agree that IGRA and the Johnson Act must be adhered to by gaming tribes, but the appellate court ruled that the type of machines now operated by the Santee Tribe do not constitute slot machines as described under the Johnson Act.
Many tribes will be looking at this ruling and other courts will use this as precedence in possible upcoming cases, attorneys claim.
"This is a unique ruling. It is a beneficial interpretation of the Johnson Act, it is highly significant," said Conley Schulte, attorney for the Santee Sioux.
"This confirmed the Class II definition. It gives a broader, far more exciting interpretation of Class II games," he said.
Even though the ruling favored the Santee, they are not out of the woods yet. They still owe $4 million in fines accrued from Feb. 1999 to May 2001. The District Court imposed the fine of $3,000 per day on the Santee in 1999, increased it to $6,000 when the tribe was found in contempt and that continued until the Santee changed the gaming devices in May 2001.
The daily fines were stayed by the court during the legal proceedings.
The tribe is ready to sit down with the federal government and negotiate possible favorable changes in the $4 million held against them.
"This ruling will give the tribe a better shot at getting this fine abated," Schulte said.
Although the tribe can operate the small Ohiya Casino legally, the ruling doesn't mean they won't have to do magic tricks with any revenue they glean from the casino. In years past, the federal prosecutor from the U.S. Attorney's office in Lincoln, Neb. ordered the tribe's bank accounts seized resulting in any revenues generated by the tribe going toward payment of the fines.
The tribe stopped using bank accounts and used other methods of hiding any revenues from the Ohiya Casino so it could pay the few employees it had and assist some tribal programs.
"This restores our faith in the justice system for Indians," said Thelma Thomas, manager of Ohiya Casino and a tribal councilwoman.
"I'm happy it took the 8th Circuit Court to confirm that we were legal. I also hope the U.S. will cease its adverse actions against us. Our whole purpose was to provide employment," she said.
The Ohiya Casino opened in 1996 in a small converted space that started as a caf? in the tiny town of Santee Neb. The casino opened with Class III gaming devices, 23 employees that represented the same number of families, and the hope that any revenues could help drive a faltering economy on a reservation with 80 percent unemployment.
When the federal government at the request of the state filed court action against the casino, the tribal council stood strong and kept the casino open amidst threats of arrest.
The tribal membership stood steadfast behind the leadership, and until May 2001 were subjected to the insurmountable fines. Tribal leadership continually said the tribe had no means of revenue that could help pay the enormous fines.
"We've had grant applications stopped, bank accounts seized, land seized. This is a major victory for the tribe. We are a small tribe and we stood up for our rights," Thomas said.
What may be different this time is the fact that a new U.S. Attorney is in place. (He was not available for comment.) The Santee are hopeful that possible negotiations will meet with a cooperative effort on the U.S. Government's part.
Thomas said that Tom Monaghan, former U.S. Attorney said some "bad things about us."
Attempts were made in the state legislature to put the gaming issue on the ballot in order to change the constitution to allow Indian gaming. Over the past few years those attempts failed and this year many bills opening up gaming were introduced, yet did not reach a conclusion.
The entire debacle began when then Gov. Ben Nelson failed to negotiate gaming compacts in good faith according to the rules of the IGRA, Santee officials argued. The state stood by the constitution, which prohibits Las Vegas type gaming. The state operates a lottery, Pickle pull-tabs and a video Keno game. The tribe then attempted to assert its sovereignty and opened a casino, which eventually brought in the federal judicial system in 1996.
Thomas said she was especially thankful for the many tribes across the country that supported the Santee efforts and many of the tribes in the Great Plains went the extra mile to help.
The small tribe is looking forward to a celebration and the opening of a new restaurant this summer and some expansion of the Ohiya Casino. During the court actions and government seizures the neighboring communities and counties supported the Santee and the Ohiya Casino.
Business owners from nearby Niobrara, Neb. told Indian Country Today they noticed an increase in traffic from throughout the area and that many people heading for the casino would stop and eat and often stay overnight.
"We will still not be putting money in our accounts, this doesn't go that far. But we do see good things ahead. We have had to hang our heads because history has not always been good to us, it has done horrible things to our people.
"We were surprised the ruling came this quick, and we are happy. The burden has been lifted off and maybe (the federal government) will leave us alone," Thomas said.