Knowles administration fights move to expand tribal powers

Posted: Tuesday, June 20, 2000

ANCHORAGE (AP) -- The state wants to intervene in two lawsuits in Washington, D.C., that could establish Native gaming in Alaska along with extending tribal self-government powers to more than 1 million acres of allotments and town sites.

''The Knowles administration doesn't want to see substantial expansion of gaming and another battle over Indian country,'' Attorney General Bruce Botelho said of the state's recent effort to join the lawsuits.

Indian country is the legal terminology for Native lands where tribes have self-governing powers.

The U.S. Supreme Court ruled two years ago in the Venetie case that such lands generally do not exist in Alaska. But the court held out in a footnote a possible exception for Native allotments. Those are land parcels of up to 160 acres apiece that were deeded to individual Natives until 1971.

If allotments are an exception, then it's because the federal government retained some trust responsibility over them by requiring the secretary of the Interior to approve their sale. Tribal governments also may have governmental powers over Native town sites.

The state wants to argue that such land isn't Indian country.

The state contends that an adverse ruling could hinder Alaska's ability to regulate nearly 1 million acres in the state, potentially displacing its authority over a huge area of allotments and town site lots.

The state's motion to intervene came just as U.S. District Court Judge Richard Robert was prepared to rule on motions that could dispose of the case.

The cases are appeals of decisions by the National Indian Gaming Commission rejecting gaming ordinances for the Kenai-based Kenaitze Indian Tribe, the Akiachak Native Community and the Native Village of Barrow to operate bingo parlors under the Indian Gaming Regulatory Act.

Charitable organizations are permitted under state law to operate bingo games.

Because these games would be on Native land and under federal regulation, however, they would escape state limits on the size of prizes and the number of hours the games could operate.

Some bingo parlors on Lower 48 Indian reservations are open 24 hours a day and offer millions of dollars in prizes. Bingo games in Barrow or Akiachak, a Kuskokwim River village upstream from Bethel, are unlikely to become such gaming centers, but the Kenaitze proposal is for an operation on 10 acres in Kenai, which draws heavily from Anchorage.

With larger purses and more hours of operation, the Knowles administration fears a large Kenaitze parlor could soak up much of the $16 million a year in gross gaming receipts in Kenai and cut into the nearly $70 million in gross revenues that charitable gaming raises in Anchorage.

Even in Barrow, where charitable gaming amounts to less than $5 million in gross receipts, the Knowles administration fears that bigger prizes offered by the Natives would drain earnings that other local charities count on from state-regulated operations.

The federal Indian gaming law was written to give federally recognized tribes a way to raise money to operate their governments. It allows gaming on Indian lands over which a tribe has exercised governmental powers as long as the kind of games offered are not banned by the state.

The National Indian Gaming Commission rejected the tribes' ordinances on grounds that they had not exercised governmental authority over the lands where the parlors would be, a requirement under federal Indian gaming laws.

But the lands at issue are Native town sites and allotments that the U.S. Supreme Court, in its Venetie decision two years ago, said could be Indian country over which tribes have self-governing powers.

The Knowles administration is concerned that the gaming cases are opening the door to a renewed battle over the existence of Indian country in Alaska.

The administration in March asked lawyers for the three Native organizations to suspend their appeals and to try to work out a deal through the governor's government-to-government discussions on state and tribal relationships.

''The governor is willing to include gaming as a topic for discussions in the tribal-state meetings in the near future,'' Botelho said in a letter to the lawyers.

Bertram Hirsch, a Long Island, N.Y., lawyer who has argued Indian gaming cases for years, said he was willing to go along with Botelho if there was something in it for his clients, Akiachak and Kenaitze.

To deal with Knowles' concern that the appeal would extend Indian country in the state, Hirsch said, he offered to suspend the case if the governor and the state's congressional delegation would back a federal amendment to the Indian gaming law that declared that for the purposes of gaming regulations only, Alaska tribal lands qualify as Indian land.

Botelho rejected Hirsch's offer a month later, saying it would do nothing to slow the expansion of gaming in the state and that the ''proposed change to the Indian Gaming Regulatory Act would generate spirited debate in Congress and would ultimately fail.''

Hirsch concluded from the exchange that the government-to-government negotiations would be fruitless because ''the governor has no intention of seriously discussing gaming with Natives.''

Hans Walker, a Washington lawyer for the Barrow tribal government, said the Knowles administration is waging a last-minute effort to make its way into a case over an Indian country issue it's certain to lose.

''They've known about this case since 1994,'' Walker told the Anchorage Daily News. ''This is ridiculous. Why are they coming into this now?''

The Knowles administration's late entry into the case also is drawing some heat from the Alaska Legislature.

In a letter to Knowles last week, Sen. Mike Miller, who chairs the Legislative Council, demanded to know when the governor first learned about the tribal lawsuits and why the administration waited so late into the federal court appeals to intervene.

''These lawsuit raise questions of which the answers are of profound importance to the Alaska Legislature's ability to continue to assert its regulatory jurisdiction in Native villages,'' wrote Miller, R-North Pole.

The council also suggested another ground for Knowles to fight approval of the Natives' gaming ordinances: that the villages are not tribes and that the Clinton administration failed to follow the law when it said otherwise in 1993.



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