By Chet Barfield
STAFF WRITER
May 25, 1998
The Indian gambling machines continue to hum. The cards are still being dealt, the bingo balls bounced. From all appearances, it's business as usual at tribal casinos in San Diego County and throughout the state.
But in one hectic week and a half, the legal status of the state's 39 gaming tribes has profoundly changed.
Each tribe is now on one side of the law or the other, in or out, negotiating with the state or being prosecuted by the U.S. government.
The dominoes began falling May 13, when the Justice Department acted to end the prolonged battle over California Indian gaming.
All three San Diego-area gaming tribes -- a significant bloc, in the big picture -- have reluctantly moved under the umbrella of law.
First Viejas, then Barona and lastly Sycuan agreed to sit down with Gov. Pete Wilson and discuss the only offer on the table, a gambling agreement like the one signed in March by the North County's Pala Indian band.
Two tribes in Northern California shut down their gambling machines May 13 to be allowed to negotiate deals from scratch.
The rest -- Pechanga, Morongo and 25 others -- rejected both options. They're being sued by U.S. attorneys in Los Angeles, Sacramento and San Francisco.
Their lawyers will try, in upcoming hearings, to keep the government from taking their machines. They'll argue they don't have compacts because the governor refused to negotiate.
Their odds are not good.
Prosecutors are wielding a federal law called the Johnson Act, which makes possession of unsanctioned gambling devices illegal. The law, as it applies to Indian tribes, is pretty black and white: You either have a compact or you don't. The tribes don't.
And if they lose, they lose the machines that have fueled an unprecedented economic revival in California Indian country. They'll be left with bingo and card games, which generate only pennies compared with the video slots. Employees will be laid off.
Sycuan, Barona, Viejas and seven other tribes are on a different course. They have until mid-July to enter a compact or be back on the feds' hit list. In the meantime, for that 60-day window at least, they can keep their machines running and their employees working.
Tribes that sign an accord have up to a year to convert their video slots to lottery-style devices authorized by the Pala pact. These new machines exist only in prototype form.
The San Diego tribes are taking this road under duress. They had little choice. Unlike other districts, they faced a judge with proven desire to clamp down on Indian gaming.
So Sycuan, Barona and Viejas will try to turn the Pala compact into something they -- and other tribes -- can live with.
"We either negotiate or we can't survive," said Sharon Beasley, a 23-year-old Sycuan tribal member who changed her mind Wednesday night and voted with the majority to accept the Pala offer.
"Basically we have a gun to our head." she said. "We may not like the Pala compact. We may not like what we get in the end. But at least we can get to the bargaining table and negotiate ourselves."
Tribes oppose the Pala accord for reasons of sovereignty. They object to its provisions giving state and local authorities new controls in areas such as hiring, environmental impacts and workers' compensation.
But on a more basic level, tribes reject being bound to a contract they did not negotiate. That undermines their protected status as governments.
The tribes now entering negotiations don't know how much wiggle room they'll have to modify the "model" agreement, but they will have some. U.S. Assistant Interior Secretary Kevin Gover made that clear last month when he couched his approval of the Wilson-Pala pact with a stern warning that it could not be applied in cookie-cutter fashion to other tribes.
While Viejas, Barona and now Sycuan have offered only conditional agreement to pursue an accord like Pala's, state and federal officials will be surprised if they do anything else.
"If they have made the commitment that they are going to take a compact, I have to believe they are going to go forward on that," said one federal prosecutor. "I can't imagine they would go sideways on that.
"Contrary to what they've been told, we've used a great deal of restraint, and they're really looking down the barrel of a cannon if we were to completely lose patience."
But there are more battles to come in the courts, the Legislature and the ballot box.
A bill authorizing Wilson to execute the Pala compact is pending on the Senate floor, where the vote figures to be close. If Viejas, Barona and Sycuan pull out of the fierce tribal opposition to the legislation, they could give the Pala accord and its supporters a significant boost.
In November, voters will decide a ballot initiative that would legalize the tribal gambling machines now in dispute.
Voters also will elect a new governor. No matter who that is, he or she is likely to be more conciliatory to tribes than Wilson.
Viejas Chairman Anthony Pico says taking the Pala option does not mean the tribe is surrendering its fight for sovereignty. He cites the strategy of an Apache war chief 100 years ago.
"Geronimo has been recognized as one of the greatest military geniuses that ever walked on the North American continent," Pico said. "They always thought Geronimo was running away.
"Geronimo never ran away. He picked his time to fight. He lived to fight another day."
Copley News Service reporter James P. Sweeney in Sacramento contributed to this story.