AUGUSTA, Maine - The decision to allow the Penobscot Indian Tribe to operate slot machines on its reservation ultimately may not rest with the Legislature or the governor, but with a civil rights ruling from a federal court.
The Penobscots have not filed a civil rights lawsuit against the state; they are awaiting the outcome of a bill that would allow them to operate 400 slot machines during high stakes bingo games on Indian Island tribal land.
Support for the Penobscots' slot bill is running high in both the House and Senate, but the tribe needs a solid and loyal super majority to withstand a promised veto by Gov. John Baldacci.
On June 19, the Maine House gave its final approval in a veto-proof 90 - 40 vote, then sent the bill to the Senate. The Senate was slated to vote on the bill June 20.
But if the bill fails or legislators abandon their support in the face of a veto, the tribe may have to file a constitutional lawsuit challenging the state's authority to allow nontribal gaming and its own lottery in the state while denying the tribe the same opportunity.
''Personally, I think that would be the only way to go,'' Donna Loring, the Penobscots' nonvoting legislative representative, told Indian Country Today.
Three years ago, Maine voters approved a measure that allowed Penn National, an out-of-state company, to open Hollywood Slots in Bangor while they defeated a measure for an Indian casino in southern Maine.
''If we get stomped down this time, then I think a civil rights lawsuit is our only alternative because, basically, what we have here is a monopoly by an out of state company on gaming and a monopoly by the state on gaming,'' Loring said.
Ironically, the Penobscots had a successful slot machine operation back in the 1970s before the passage of the Maine Indian Claims Settlement Act in 1983, when the tribe had to shut down the slot operation. The Penobscots and other Maine tribes have been pursuing gaming unsuccessfully since then.
Eric Mehnert, a constitutional lawyer from Bangor, said the tribe could make a clear case of discrimination under the 14th Amendment, which says that similarly situated entities can be treated differently only if there is a compelling state reason for doing so.
''Certainly, there is a compelling state interest in limiting gambling within the state. But having made a decision to allow gambling up to a certain number of slots, there is no compelling state interest served in allowing an out-of-state corporation to hold a state-sponsored monopoly, while refusing to allow the Native peoples of this state from doing so,'' Mehnert said.
Racism is a sensitive subject in Maine, said Ben Collings, who is lobbying on the slots bill for the tribe.
''I think in the Legislature and across the state, they try not to bring up the word 'racism' or 'civil rights.' They say they feel more comfortable with the word 'fairness.' And there's definitely a fairness issue here. Even people who don't like gambling say, how can you say these people down the road can have it and these tribes can't have it?'' Collings said.
The Penobscots' high stakes bingo operation has declined in profits since Hollywood Slots went into operation. The non-Native facility is planning to upgrade its 475-slot operation to an entertainment complex with possibly 1,500 slots.
The Penobscot bill is about ''tribal needs, not wants,'' Chief Kirk Francis said.
''This bill isn't about corporate profit or individuals making money; it's about getting our services to an acceptable level,'' Francis said.
Although Baldacci opposes gaming expansion and has said repeatedly that gaming bills should go to referendum, he unilaterally introduced a $10 million-generating Power Ball game into the state lottery to balance the budget during the last legislative session. The boost brought state gaming revenues up to $50 million.
''If the state can balance its budget with a gaming operation, why can't the tribe get a much smaller operation to balance its budget and provide services for the elders and diabetes programs?'' Collings said.
Last month, Baldacci vetoed legislation to allow the Passamaquoddy Tribe to operate a racino resort in Washington County. Because the proposal was initiated by a citizens' petition, it will now go to a referendum vote in November.
But Loring, who sponsored the Penobscot slot bill, said she can and will block any effort to send the Penobscot bill to referendum.
''They could use it as a competing measure against the Washington County bill and I absolutely will not allow that to happen,'' Loring said.