By George Lardner Jr.
Washington Post Staff Writer
Wednesday, May 13, 1998; Page A15
The four U.S. attorneys in California had vowed to take "enforcement action" against all gaming tribes in the state on May 13 if they had not by then signed a restrictive -- and the tribes say illegal -- compact with Gov. Pete Wilson (R) or unplugged their video gambling machines while they tried to negotiate a better deal.
The ultimatum, issued two months ago, led to fears of FBI raids on reservations. But senior Justice Department officials, speaking on condition of anonymity, said they would instead take the "measured, orderly" approach of litigation.
"What we're dealing with here is illegal gaming," one of the officials said. "There are approximately 37 tribes [in California] that are operating machines that are in violation of federal law."
He was referring to a long-standing statute that prohibits "slot machines" or similar devices in Indian country unless they are allowed by compacts between the tribes and the states that have been approved under the provisions of the federal Indian Gaming Regulatory Act of 1988.
Officials said the forfeiture suits would be filed Thursday in San Diego, Los Angeles, San Francisco and Sacramento against tribes in those four federal court districts that have not signed the "Pala compact" that Wilson has held up as a model and are still operating their machines. No one will be arrested, the officials said, and the legal battle could be prolonged. The gambling, meanwhile, will be allowed to continue.
Some of the tribes have more than 1,000 machines in their casinos. They say they have no compacts because Wilson has refused to negotiate with them in good faith. The governor, in turn, has said he will not negotiate with any tribe engaged in illegal gambling.
The Pala compact, which the governor signed in March with a small nongaming tribe in San Diego County, would restrict the Pala and every other tribe in the state to a total of 199 of their own machines. Tribes wanting bigger casinos could lease more machines from nongambling tribes for fees of as much as $5,000 a year, but no tribe could operate more than 975 machines at a time.
Lawyers for the tribes had asked Attorney General Janet Reno to avert the enforcement action and mediate their dispute with Wilson. But Justice Department officials took the position yesterday that they have been patient enough, saying they have waited for several years now for the tribes and the state to reach agreement.
"We think the law is clear," one of the department officials said. He said the government will seek warrants that would require the tribes "to turn the machines over to us." If the Indians lose the court cases, he said, "we expect the tribes will comply."
The strategy of filing suits in four courts, however, opens up the possibility of conflicting rulings. The court orders can be appealed.
The California tribes blame their difficulties in large part on a 1996 Supreme Court decision that deprived them of their ability to sue a state that refused to negotiate a compact with them. Although Congress gave the tribes authority to bring such lawsuits under the 1988 gaming act, the court held the provision an unconstitutional violation of a state's right not to be sued by private parties.
Justice Department officials emphasized, however, that California has now agreed to waive that right if tribes that halt their gambling and start negotiating with the state then conclude Wilson is not dealing with them fairly.
Legislation aimed at improving the 1988 law, including provisions for mediation of disputes with recalcitrant states, came up for a hearing yesterday before the Senate Committee on Indian Affairs. Several witnesses for Indian groups and for the governors' association said some other aspects of the bill could make matters worse.