Indian gambling on the table.

• Author: Cole, Thom
• Position: New Mexico's approval regarding Indian gambling

States and tribes have a history of disagreements. Now decisions in the West may affect Indian-sponsored gaming nationwide.

The debate over Indian gaming in New Mexico is more than a controversy; it is a case study in how a public policy dispute can be played out in two arenas - the political and the legal. And how action, or inaction, in one arena can cause a reaction in the other.

The battle over Indian gaming is now years old, and it has drawn in legislators, governors, prosecutors, judges and justices, lawyers and lobbyists. It has involved tribal, state and federal governments. Hundreds of millions of dollars are at stake.

"The situation in New Mexico has manifested just about every quirk and bizarre turn in the road that anyone could imagine," says Richard Hughes, a lawyer for tribes. "It has been a completely unpredictable roller-coaster ride.

"The experience has been unique compared with other states," Hughes says. "And strangely, it doesn't seem to get closer to resolution."

The Legislature this year approved, and Governor Gary Johnson signed, legislation for new state-tribal compacts for Indian casinos. But the compacts require tribes to share a large chunk of their casino revenue with the state, and that may be illegal. Another complication: Gambling opponents are pushing for a referendum on the legislation in the November 1998 general election.

The debate over Indian gaming in New Mexico, however, is much more than a good story. What has occurred could have dramatic effects on negotiations or renegotiations of state-tribal gaming compacts around the country.

MORE THAN JUST BINGO

A decade ago, Indian gaming meant high-stakes bingo. Today, it is about Las Vegas-style casinos from one shore of this nation to the other. There is the wildly successful Foxwoods casino in Connecticut, where patrons from New York City arrive by the busload. At the Ft. Randall Casino in South Dakota, ranchers and farmers drive long distances in pickup trucks for the companionship of nightly poker games. Guests at the Inn of the Mountain Gods resort in New Mexico can hunt for big game during the day and gamble for high stakes at night.

This remarkable change in America's landscape began with a landmark Supreme Court decision in 1987. The Court, in a case pitting the state of California against the Cabazon Band of Mission Indians, ruled that a state prohibition against gambling extends to tribal land, but the prohibition doesn't apply if gambling is legal elsewhere in the state. That meant tribes could set their own rules for any kinds of gambling already permitted by the state - for example, they could determine pot sizes in bingo games.

Congress and President Reagan responded to the Supreme Court decision by approving the Indian Gaming Regulatory Act of 1988 (IGRA). Recognizing that states have interests in matters that occur within their borders, Congress required tribes to negotiate with states on the conduct of any casino-style gambling.

Tribes - who traditionally have had troubled relations with states - complained that the law infringed on their rights of self-government. Wendell Chino, president of the Mescalero Apache Tribe in New Mexico, called the law "sloppy and shoddy." He said, "If the majority of this country was subjected to such a bad process of lawmaking, they'd be outraged. But Indian tribes are asked to swallow a bad law."

Time has shown that Chino was both right and wrong. Some less than skillfully worded provisions of IGRA opened the door for court interpretation and constitutional problems. But in general, the court decisions in the early years of IGRA favored tribes, especially on the issue of what casino games they could offer.

Today there are about 165 state-tribal compacts for casino-style gambling in some two dozen states. Tribes don't publicly disclose how much they rake in, but estimates of annual gross revenues range from a few million to several...