FGA/NGA Florida Legislative Update as of
10/21/09
Florida House Speaker Larry Cretul
sent a letter today to the Chairman of the National Indian Gaming Commission
regarding the Seminole Indian Compact.
The Speaker and Rep. Bill Galvano R-Bradenton,
Chairman of the Seminole Indian Gaming Compact Committee, met yesterday with
George Skibine, Acting Chair of the National Indian
Gaming Commission, to discuss the status of the current proposed gaming compact
as well as concerns with the Tribe's continued operation of Class III games in
the absence of a compact. I am attaching a letter the Speaker sent to Mr.
Skibine today that sets forth the principal substance
of what was discussed.
October 21, 2009
Mr. George Skibine, Chairman
National Indian Gaming
Commission
1441 L Street N.W., Suite 9100
Washington, D.C. 20005
Dear Mr. Skibine:
Thank you for taking
the time to meet with Chairman Bill Galvano and me yesterday. To recap
our position, the State of Florida has been actively
engaged in good faith negotiations with the Seminole Tribe of Florida. Although
significant progress has been made in moving toward a compact that would be
mutually agreeable to both the Tribe and the State; we are still far apart in
respect to what the Tribe is demanding and what we are willing to permit under
a gaming compact and under the state's other gaming laws. Furthermore, it
is my opinion that we have reached an impasse that can only be remedied with
your intervention.
The Indian Gaming
Regulatory Act (IGRA) clearly prohibits the conduct of Class III gaming
activities on Indian lands in the absence of a tribal-state compact that is in
effect. The only exception to the compact requirement Congress envisioned
was the promulgation of a gaming compact through administrative procedures
after a bad-faith determination and in concert with a proposal selected by a
court-appointed mediator. Notwithstanding these mandatory prerequisites,
the Seminole Indian Tribe is presently conducting Class III gaming at all seven
of its tribal gaming facilities in Florida under the provisions of a tribal-state
compact that was held invalid in Florida House of Representatives v. Crist, 990
So.2d 1035 (Fla. 2008).
Whether a tribal-state
compact has been entered into and is in effect is a matter of state law.
In Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997), the court held that the
compact must be valid under state law to be valid and in effect. The court,
surveying several cases in various states, concluded that the "entered
into" language in 25 U.S.C. 2710(d)(1)(C) imposes
an independent requirement that the compact must be validly entered into by a
state before it can go into effect via Secretarial approval.
In Florida House of
Representatives v. Crist, the Florida Supreme Court held "that the
Governor does not have the constitutional authority to bind the State to a
gaming compact that clearly departs from the State's public policy by
legalizing types of gaming that are illegal everywhere else in the
state." The Seminole Tribe petitioned the court to be made a party
to the case and that request was granted. The Court withheld the issuance
of the writ of quo warranto to enforce its decision
because the court believed that the parties, which included the Seminole Tribe
upon the Tribe's own petition, would fully comply with the dictates of the
opinion.
The Tribe has not
complied. In fact, the Tribe has expanded its Class III games to include
the offering of banked card games at its Tampa and Immokalee
facilities after the Court issued its ruling. The Tribe is still
conducting Class III gaming without a valid compact in direct noncompliance
with the decision of the Florida Supreme Court and federal law. The Tribe's ability to profit from
these illegal games creates a disincentive to enter into a compact, and places
the State at a significant disadvantage in negotiating games to which it never
gave its consent.
As the Chairman of the
National Indian Gaming Commission (NIGC) you have the authority to levy and
collect appropriate civil fines up to $25,000 per violation against any tribal
operator or management contractor who violates any provision of IGRA,
Commission regulations, or tribal regulations, ordinances, or
resolutions. You also have the authority on behalf of the NIGC to issue
orders of temporary closure of gaming activities for substantial violations of
the provisions of IGRA, of regulations prescribed by the Commission pursuant to
IGRA, or of tribal regulations, ordinances, or resolutions. It is our
hope that the NIGC exercises this authority to bring the Tribe into compliance
with federal law.
The disadvantages to
the State in attempting to negotiate a compact under the present circumstances
are clear. Until the banked card games (and slot machines) are shut down
and the Tribe gives some indication that it is willing to abide by the law, and
ultimately its agreements, it would appear that the State would be ill-advised
to enter into any compact with the Tribe.
In conclusion, I would
clearly state we are willing to negotiate in good faith with the Seminole Tribe
of Florida; however, we cannot agree to something that would be ultimately
detrimental to our State or our residents. We will not be forced into accepting
a compact that grants the Tribe more games than they may rightfully demand
under IGRA.
Thank you for your
attention and consideration of this matter. If you would like to discuss
these issues further, we are willing and able to do so.
Sincerely,
Larry Cretul
Speaker
cc: Governor Charlie
Crist
President Jeff Atwater
Representative Bill Galvano
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you should have any question you can email me at: jackcory@paconsultants.com .
Jack Cory
Public Affairs Consultants Inc.
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Tallahassee, FL 32301
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