By George Lardner Jr.
Washington Post Staff Writer
Monday, May 11, 1998; Page A09
On the Pechanga Indian reservation in Riverside County, Calif., however, the Justice Department seemed to be playing hardball. That morning, just a few hours before Reno spoke, six FBI agents marched into the Pechanga Entertainment Center, clipboards in hand, and began taking inventory of the tribe's 1,320 video gambling machines.
"They didn't say anything. They just started writing stuff down," said Mark Macarro, council chairman of the federally recognized band of Mission Indians. "We asked them, 'By what authority are you here?' They pulled out a business card for the U.S. attorney's office in Los Angeles and said, 'If you have any questions, you need to call this number.' "
That wasn't good enough for the Pechanga. "This was an invasion," Macarro asserted. "We are a government. If the federal government wants to talk to us, there are ways to talk. We asked them to leave and they did. They were on our property for about 20 minutes."
The FBI's visits to the Pechanga and other California reservations that day were apparently preface to a promised federal crackdown on 14,000 "illegal" Indian gambling machines throughout the state this Wednesday.
The government won't say whether it plans to take civil or criminal action, whether it intends to confiscate the gaming devices or whether it will simply file court papers demanding their forfeiture. But in an ultimatum issued in March, the four U.S. attorneys in California vowed to take "enforcement action" against the 39 tribes with casino-class gambling unless they sign a restrictive "model" compact favored by Gov. Pete Wilson (R) or unplug their machines while they try to negotiate a better deal. The deadline is midnight Tuesday.
"If the FBI invades these reservations -- and the word 'invasion' is being used -- you will see some very sad scenes on TV," said one lawyer for the tribes who asked not to be named. He said tribal leaders are emphasizing the importance of a nonviolent reaction, but federal gambling raids on Indian reservations over the past decade in New York and Arizona have resulted in gun battles and blockades.
Wilson has said he won't talk to the tribes unless they cease their "illegal" gaming. "The governor will not negotiate with people who are breaking the law," said a spokeswoman, Lisa Kalustian. "They call them video devices," but under California law, she said, "they are 'slot machines.' "
The tribes and their lawyers point out that this issue is pending in federal court in a complicated case that has gone up to the U.S. Court of Appeals and back down again. They insist their electronic devices are indeed legal, just not the kind that Wilson wants them to use. And the kind Wilson wants them to use, they note, are not yet commercially available.
"It isn't the machine that makes it permissible or not, it's the software -- the game and the prize system that the machine uses," said Jerry Levine, attorney for the California Nations Indian Gaming Association. "In California, the state lottery commission has online lottery games, all kinds of devices that use video screens, accept bills and have interactions with the players. They have them in supermarkets, cocktail lounges and 7-Elevens all over the state. They've turned all these places into casinos. That's what makes this all so maddening."
State-operated games, Levine added, used to include Keno until the California Supreme Court ruled that out on the grounds it was a banking game -- in which the operator gambles directly against the player. "So," he said, "the state lottery came back and installed a prize-pool game they call Hot Spots in the same equipment."
On one point, there is no dispute. The gaming tribes, some of which have been in business for more than five years, have no compacts with the state as required under the Indian Gaming Regulatory Act passed in 1988 by Congress. The tribes blame the governor, saying he refused to negotiate with them in good faith, freezing them out while he dealt with the Pala band of Mission Indians, a small, non-gambling tribe.
After 17 months of negotiations, Wilson signed a compact with the Pala on March 6, describing it as a "model" that all tribes in the state should abide by. It gives the Pala authority to run a casino with 199 of a certain kind of instant lottery machine and imposes a limit of 199 machines on every other tribe in the state. In a coordinated announcement, the Justice Department gave the tribes until Tuesday to sign a Pala pact of their own or stop their gambling and seek a different compact with the state.
The tribes soon hired former White House spinmeister Lanny J. Davis and his Washington law firm in an effort to keep the Interior Department from approving the Pala pact. They contend it is an illegal intrusion on the rights of other tribes and full of other defects that will result in the "loss of thousands of jobs on Indian lands in California and millions of dollars in tribal revenues." Eighty percent of their gambling income comes from the machines.
"They are really cash cows," said Macarro. His tribe's casino draws up to 5,000 customers a day. Another tribe near San Bernardino, the San Manuel band of Serrano Indians, has 1,018 machines that attract 4,000 to 5,000 players a day. Neither casino serves alcoholic beverages.
"All tribes believe that the electronic games they now play meet the requirements of California law, particularly when conducted as non-banking or lottery-type games," Davis said. "The majority of California tribes have never asserted a right to 'Nevada-style' slot machines that have handles and dispense money. . . . But for the governor's intransigence, this dispute could have been laid to rest long ago."
Wilson's office says the California tribes "have willfully and wantonly" flouted state law for years and that it is time the federal government cracked down. His aides describe the 199-machine limit on each tribe as a share-the-wealth provision. Under the Pala pact, tribes that do not want casinos or are too remote to make them successful can lease their allotments for up to $5,000 a year per machine, but no gaming tribe could operate more than 975 machines at a time.
"The tribes who charge we're not negotiating in good faith need to hold up a mirror and look at themselves," said Kalustian, the governor's spokeswoman. "We have negotiated in complete good faith." The gambling tribes, she said, have had "ample warning" of the deadline.
The Interior Department approved the Pala compact April 25. Assistant Secretary for Indian Affairs Kevin Gover stressed that its terms were binding "only on the state and the Pala Band" and that the state could not meet its good-faith obligations under federal law "by offering only identical compacts to other tribes."
Justice Department lawyers, however, served notice at a federal court hearing last month that they intended to move ahead with enforcement action no matter what Interior did.
The tribes asked Reno almost three weeks ago to step in and mediate the dispute with the state, but the closest they have gotten to a requested meeting with her was a session at Justice last Tuesday with two deputy assistant attorneys general and other officials.
According to participants, the tribal leaders cited, among other things, a Dec. 6, 1996, memo Reno sent to all U.S. attorneys and other Justice units directing them to give "especially careful consideration to negotiation" in "disputes between Indian tribes and the United States."
They were told, however, that Reno was not prepared to meet with them "as of now" and that "the decision had been made at the highest level of the department" to "enforce the law against illegal gaming devices" after May 12. James Simon, a deputy assistant attorney general in the natural resources division, urged them to try to negotiate with state officials in the few days left.
Since then, one source close to the tribes said yesterday, "we've opened discussions with representatives of the governor and the state attorney general and we've made some progress, but the failure of the federal government to assist in this process is hampering our ability to reach a fair resolution."
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